Hausfeld v Hausfeld & Anor [2012] NSWSC 989

Hausfeld v Hausfeld & Anor [2012] NSWSC 989

While the proposed alteration to the will is reasonably likely to have been made by the testator if he had capacity, it is not, nor may it become, appropriate for the court to authorise an alteration intended to defeat the creditors of the plaintiff; such use of the statutory will power is contrary to legal policy and should not be endorsed by the court. Adequate procedural fairness also requires that third parties with a legitimate interest be joined, which was not satisfied here.

Jurisdiction
Australia
Judgment Date
30 August 2012
Procedural Posture
Application for Leave to Make an Application for Statutory Will (succession/probate) / Final Judgment on Application
Outcome
Application dismissed; relief refused; costs ordered against plaintiff.
Legal Topics
['statutory Wills' 'alteration of Wills' 'testamentary Capacity' 'procedural Fairness' 'representation of Interested Parties']
['wills and Estates' 'probate' 'civil Procedure'] ['statutory Wills' 'alteration of Wills' 'testamentary Capacity' 'procedural Fairness' 'representation of Interested Parties']

Case Brief

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Procedural Posture

Application for Leave to Make an Application for Statutory Will (succession/probate) / Final Judgment on Application

Legal Issues

  1. 1 ["Whether the court should grant leave to apply for a statutory will to alter the testator's will so as to substitute the plaintiff's wife as a beneficiary in place of the plaintiff" 'Whether the proposed alteration is one that the testator is reasonably likely to have made if he had testamentary capacity (Succession Act 2006 (NSW) s 22(b))' 'Whether it is or may be appropriate for the court to make the order sought to alter the will (Succession Act 2006 (NSW) s 22(c))' 'Procedural fairness: whether all persons with a legitimate interest in the application have been adequately represented (Succession Act 2006 (NSW) s 22(e))']

Ratio Decidendi

While the proposed alteration to the will is reasonably likely to have been made by the testator if he had capacity, it is not, nor may it become, appropriate for the court to authorise an alteration intended to defeat the creditors of the plaintiff; such use of the statutory will power is contrary to legal policy and should not be endorsed by the court. Adequate procedural fairness also requires that third parties with a legitimate interest be joined, which was not satisfied here.

Court Disposition

Application dismissed; relief refused; costs ordered against plaintiff.

Orders

  • ['Summons be dismissed.' "Plaintiff pay the defendants' costs as submitting defendants."]